AUSTRALIA UNITED STATES OF AMERICA TRADE AGREEMENT JSCOT INQUIRY TABLED 24 JUN 2004 Report 61 The Australia - United States Free Trade Agreement June 2004 D Summary Reasons for Australia to take proposed Treaty Action E Submission Man Committee OIC XML & E-commerce Special Interest Group [XZIG] F Side-Letter May 18 on Chapter 15: Government Procurement List of recommendations List of recommendations by Treaty section 3 OVERVIEW OF THE TREATY 2 Recommendation 1 To enable the Australian Parliament to assess the economic impact of the AUSFTA, the Committee recommends that a review of its implementation be conducted by the Productivity Commission five years after the Agreement enters into force. Recommendation 2 The Committee recommends that there be more consultation with State and Territory Governments in the final stages of negotiations of Free Trade Agreements. The Committee further recommends that the outcomes of any Agreements be made available to State and Territory Governments at the conclusion of negotiations. 4 DMINISTRATIVE FRAMEWORK AND DISPUTE RESOLUTION 2 Recommendation 3 The Committee recommends that, before binding treaty action is taken, Australia gives serious consideration to the negotiation and issue of a further side letter to clarify obligations made under Article 11.16 of the Agreement, such that ‘change of circumstances’ is defined and able to be clearly understood by both Parties. Recommendation 4 Should the Agreement enter into force without amendment or issue of side letters to clarify understanding of Parties’ obligations at Article 11.16, Australia should ensure that such clarification is sought by requesting the Joint Committee established under Article 11.12(e) to issue an interpretation with regard to Article 11.16. 6 ANNEX ON PHARMACEUTICALS 2 Recommendation 5 In establishing the independent review of PBAC processes (for PBS listing under Annex 2-C of the Agreement), the Committee recommends that, in order to ensure that the fundamental integrity of the PBS is retained, the following principles be taken into account: 1 the review should focus on the issues of concern rather than reopening the whole application 2 the review should be undertaken by a specialised subcommittee comprising experts relevant to the subject of the requested review 3 the subcommittee should consider only that information provided to the PBAC, and relevant to the requested review 4 the subcommittee should report back to PBAC, and not directly to government 5 the review process should be pragmatic, and facilitate, not delay, the PBAC approval processes for PBS listing of pharmaceuticals 6 the review process be transparent and the findings and reasons for decisions made publicly available. Recommendation 6 The Committee recommends that Australia’s policy of self-sufficiency in blood products continue to be maintained. 7 AGRICULTURE 1 Recommendation 7 The Committee notes with interest the opening statement of the Honorable Bill Thomas, Chairman of the US Ways and Means Committee, that the exclusion of sugar from the AUSFTA was a mistake. Noting this, the Committee recommends that the Australian Government actively pursue after ratification through all available channels and in all available fora including the Doha Round, increased market access for Australian sugar into the United States. 8 SANITARY AND PHYTOSANITARY MEASURES 1 Recommendation 8 The Committee recommends that the Department of Agriculture, Fisheries and Forestry Australia and Biosecurity Australia undertake widespread consultations with stakeholders during the initial implementation phase of the AUSFTA, with a view to maintaining a high level of confidence in Australia’s quarantine standards and their preservation. 9 TECHNICAL BARRIERS TO TRADE 1 Recommendation 9 The Committee recommends that the Australian Government, in consultation with the wine industry, actively pursues the issue of blending and labelling through the Chapter Coordinators or other working groups. 11 CROSS BORDER TRADE IN SERVICES 5 Recommendation 10 The Committee recommends that the issues of mutual recognition of qualifications and movement of business people be made a priority within the Professional Services Working Group. Recommendation 11 Notwithstanding the operation of the Professional Services Working Group, the Committee recommends that the Australian Government pursue through all other available diplomatic channels the issues of the mutual recognition of qualifications and the movement of business people between Australia and the United States. Recommendation 12 The Committee recommends that the Government take immediate action to incorporate the current quota levels for local content under the Broadcasting Services Act 1992 which are subject to the ‘ratchet’ provisions of the Treaty as schedules under the Act so that they can only be changed by a deliberative decision of the Parliament. Recommendation 13 The Committee acknowledges the need for flexibility in the AUSFTA given the new and emerging technologies at the intersection of e-commerce, telecommunications and multimedia. The Committee recommends that the Australian Government be responsive to the need to ensure that future domestic legislation is consistent with the AUSFTA and the requirements of innovators and consumers and in particular that future regulation of such technologies will have to be more carefully targeted as a consequence. Recommendation 14 The Committee, noting evidence that terminology regarding audio and/or video services is ambiguous, recommends that future reviews of the AUSFTA need to ensure that terminology can encompass emerging technology. 15 GOVERNMENT PROCUREMENT 1 Recommendation 15 That DFAT uses its US mission to encourage remaining States to sign on to the AUSFTA. 16 INTELLECTUAL PROPERTY RIGHTS AND ELECTRONIC COMMERCE 6 Recommendation 16 The Committee recommends that the Government enshrine in copyright legislation the rights of universities, libraries, educational and research institutions to readily and cost effectively access material for academic and related purposes. Recommendation 17 The Committee recommends that the changes being made in respect of the Copyright Act 1968 replace the Australian doctrine of fair dealing for a doctrine that resembles the United States’ open-ended defence of fair-use, to counter the effects of the extension of copyright protection and to correct the legal anomaly of time shifting and space shifting that is currently absent. Recommendation 18 The Committee recommends that the Attorney General’s Department and the Department of Communication, Information Technology and the Arts review the standard of originality applied to copyrighted material with a view to adopting a higher standard such as that in the United States. Recommendation 19 The Committee recommends that the Attorney General’s Department and the Department of Communications, Information Technology and the Arts ensure that exceptions will be available to provide for the legitimate use and application of all legally purchased or acquired audio, video and software items on components, equipment and hardware, regardless of the place of acquisition. Recommendation 20 The Committee recommends that in respect of the changes to the Therapeutic Goods Administration Act 1989 and with respect to the valuable input of the innovator companies, care is to be taken in the implementation to recognise the unique position that generic pharmaceutical companies provide to the Australian community through health programs. And, accordingly it is essential that in drafting the legislation, there should be no mechanism that will cause undue delay of the entry to the market of generic pharmaceuticals. Recommendation 21 The Committee recommends that a scheme that allows for copyright owners to engage with Internet Service Providers and subscribers to deal with allegedly infringing copyright material on the Internet be introduced in Australia that is consistent with the requirements of the AUSFTA. In doing so, the Attorney-General’s Department and the Department of Communications, Information Technology and the Arts should 1 take note of the issues encountered by the US as outlined in this Report 2 tailor a scheme to the Australian legal and social environment 3 monitor the issue of peer to peer file sharing. 17 LABOUR AND ENVIRONMENT 1 Recommendation 22 The Committee recommends that the Government undertake a review of the environmental impact of the Agreement and that legislation be introduced which will ensure that all future free trade agreements contain results of an environmental impact assessment prior to final agreement. 18 CONCLUSIONS 1 Recommendation 23 The Committee recommends that binding treaty action be taken with respect to the Australia - United States Free Trade Agreement.
